1. WIA Section 188 Disability Checklist
Presented by:
Denise Sudell, Esq.
Senior Policy Advisor, Disability Issues
Civil Rights Center
U.S. Department of Labor
9/18/2018

2. The Checklist is a tool designed to:
Help ensure non-discrimination and equal opportunity for persons with disabilities in the One-Stop system
Provide practical tips and suggestions to help the One-Stop (and you) to comply with Federal requirements
9/18/2018

3. URL for the Checklist
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4. Laws Barring Disability-Based Discrimination
Disability nondiscrimination laws are different from other civil rights laws
Just letting people with disabilities participate in a program or activity is not enough
Legal duty to work with people with disabilities to make sure they have an equal opportunity to benefit from the program or activity
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5. What Federal Laws Protect One-Stop Clients with Disabilities?
Three relevant laws
Title II of the Americans with Disabilities Act of 1990 (ADA)
Covers all States, counties and other local governments administering public services
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6. Federal Laws Protecting One-Stop Clients with Disabilities (cont’d)
Section 504 of the Rehabilitation Act of 1973
Covers any State or local agency, private institution or organization, or any public or private entity that receives Federal financial assistance, directly or through another recipient/covered entity
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7. Federal Laws Protecting One-Stop Clients with Disabilities (cont’d)
WIA Section 188
Protects clients and employees of programs and activities that are:
Operated by One-Stop partners
Part of the One-Stop system
Doesn’t matter if program is physically located in One-Stop Center
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8. Overview of the Checklist Elements
Outreach
Monitoring
Data Collection
Disability Law EO
Officer
Notice
Assurances
Corrective Actions
Complaints
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9. The Nine Elements Element 1: Designating an EO Officer
Element 2: Notice and Communication
Element 3: Assurances
Element 4: Universal Access
Element 5: Compliance with Disability Nondiscrimination Law
Element 6: Data Collection
Element 7: Monitoring
Element 8: Complaint Processing
Element 9: Corrective Actions/Sanctions
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10. Element 1: Appointment of EO Officer
Recipients (except service providers and small recipients) must appoint an EO Officer, and
Provide education and training for the EO Officer and his/her staff
Publicize contact info for EO Officer, including TDD/TTY number
Allocate sufficient staff and resources
EO Officer may also serve as Section 504 Coordinator
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11. Element 2: Notice and Communication
Recipient must provide specific notice that it is covered by Federal nondiscrimination law
Two types of notice
“Equal Opportunity is the Law”
Tag lines and other info
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12. “Equal Opportunity is the Law” (aka The Notice)
Must use exact text provided in regulation (29 CFR § 37.30), which:
Explains that discrimination on specific listed bases (including disability) is against the law
Explains where and when to file a discrimination complaint
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13. Who should receive the Notice?
Basically, everyone!
The regulations contain a complete list (29 CFR 37.29)
Applicants/registrants
Participants
Applicants for employment / employees
Unions and professional organizations
Subrecipients
Members of the public
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14. How must the Notice be distributed?
Posted prominently
Through internal memoranda / other communication methods
In handbooks / manuals
Made available to each participant / made part of the participant’s file
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15. Specific requirements for people with disabilities
Notice must be communicated as effectively as to people without disabilities
If Notice provided in alternate formats to a participant with a disability, record must be included in participant’s file
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16. Tag lines and other information – what materials are covered?
Must be included in any materials / publications / broadcasts that:
Describe programs or activities
Explain requirements for programs or activities
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17. What materials are covered?
Distributed by any method
orally
in writing
electronically
Distributed to any person or organization
staff, clients, the public at large
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18. What tag lines are required?
“Equal opportunity employer / program”
“Auxiliary aids and services available upon request to individuals with disabilities”
Must use this exact text – can’t make up your own tag lines
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19. What other info must be included?
If materials / broadcasts / publications include a voice telephone number . . .
they must include either:
the recipient’s TDD/TTY number, or
the number of the relay service the recipient uses
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20. Notice and Communication (illustrative examples)
Marketing and recruitment materials (including photos and ad copy) :
Mention people with disabilities as one of the groups served
Show people across the full range of physical, mental, cognitive, and sensory disabilities
Show people with disabilities who are from various racial / ethnic groups
Indicate the recipient’s commitment to hire people with disabilities
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21. Notice and Communication (more examples)
The Notice is available in Braille and/or large print, recorded on audiocassette, or placed on ASCII diskette.
The nondiscrimination policy and complaint procedures are read or explained to individuals with cognitive impairments as a matter of routine or on request.
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22. Element 3: Assurances
An assurance is an agreement to comply with certain Federal laws
To receive Federal financial assistance, you must enter into specific assurances
Grant applicants / recipients in One-Stop system must assure compliance with WIA Section 188 and Rehab Act Section 504
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23. Grant applicants and non-discrimination assurances
All grant applications must include specific written assurance
This includes applications by sub-recipients (such as training providers)
Required text is in 29 CFR 37.20(a)(1)
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24. Recipients and non-discrimination assurances
If WIA Title I financial assistance is being provided, the assurance applies by operation of law – no matter what
Assurance applies even if:
the assurance isn’t included in the written document
there isn’t any written document
the recipient is a sub-sub-subrecipient
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25. Element 4: Universal Access
This phrase has a specific meaning under the WIA nondiscrimination regulations
Different from its meaning in the disability commmunity
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26. What does “Universal Access” mean?
People can’t have meaningful “access” to One-Stop system . . .
if they don’t know about the system
So providing “universal access” means . . .
doing OUTREACH to specific communities (including communities of people with disabilities)
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27. Suggested ways of providing Universal Access
Advertising in targeted media
Sending notices about openings in the recipient’s programs and activities to schools and community service groups that serve various populations
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28. More ways of providing Universal Access
Collaborating with entities that have experience working with persons with disabilities (e.g., developing networks and linkages through MOUs)
Consulting with appropriate community organizations about ways to improve outreach
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29. Assessing the local population
One way to ensure universal access is to conduct an assessment of the local population of people with disabilities
Use the results of the assessment to:
decide how and where to conduct outreach
improve services to people with disabilities in your service area
increase available opportunities for people with disabilities
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30. Element 5: Compliance with Federal Disability Nondiscrimination Law
This element includes both:
actions that are prohibited (things you must not do), and
actions that are required (positive steps you must take to level the playing field for people with disabilities)
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31. Sections within Element 5
5.1: General Prohibitions
5.2: Reasonable Accommodations
5.3: Reasonable Modifications
5.4: Most Integrated Setting
5.5: Effective Communication
5.6: Programmatic Accessibility
5.7: Architectural Accessibility
5.8: Employment Practices
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32. Element 5.1: General Prohibitions
These are the “don’ts” – actions that are considered discriminatory
Impossible to list every single action that may violate the law
Important: these actions are unlawful even if the person(s) who take them do not intend to discriminate
We can’t list every single action that may violate the law because every individual situation is different, and no one can foresee every possible situation that may arise – but we will provide a broad general description of the types of actions that are considered discriminatory.
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33. Examples of General Types of Discriminatory Actions
Denying a qualified person with a disability the opportunity to participate in, or benefit from, a program or activity because of his/her disability
Failing to give a qualified person with a disability an equal opportunity to get the same results or benefits from a program or activity that people without disabilities receive
Charging a particular person with a disability any extra fees to cover the costs of accommodating the disability
All of these actions are discriminatory if applied to groups of people with disabilities, as well as individual persons with disabilities. For example, it is discriminatory and unlawful for a recipient to charge all people with disabilities, or all people with a particular disability, a fee for providing accommodations or communication aids.
Again, please remember that these are only examples, and that there are many other actions that may violate Federal law because they discriminate against qualified people with disabilities.
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34. Specific Examples of Discriminatory Actions
Accepting any job orders from an employer that will not accept applications from qualified persons with disabilities
Stereotyping people with disabilities when evaluating their skills, needs, abilities, and interests
Referring qualified people with disabilities to different programs / activities / employers / types of jobs than other qualified people
Point one: Please note that we’re talking about qualified people with disabilities. There may be cases in which no person with a disability will be qualified for a job -- such as a school-bus company that refuses to accept applications for driving jobs from people who are legally blind. In these cases, the employer is not discriminating, because no one who is legally blind will be qualified for a driving job.
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35. What is steering? Based solely on a person’s disability:
Referring him or her to a particular job / employer / program / activity
Directing him or her to a particular profession / career path
Steering is illegal!
Deciding on an individualized basis is appropriate – and required by law
Similarly – illegal to automatically refer all customers with disabilities to Voc Rehab, or to special programs
segregation vs. integration
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36. Additional Specific Examples of Discriminatory Actions
Using tests or other assessment processes that measure customers’ impairments, not their skills and abilities
Failing to provide reasonable accommodations or modifications
Example: a One-Stop Center requires all customers to take a particular test to assess their basic skill levels and interests. The test is administered only in written form, and test monitors are not permitted to talk to customers who are taking the test. Customers with visual impairments have difficulty reading the questions and filling out the answer sheets. Therefore, the test cannot provide an accurate measure of the skills or interests of these customers; their test results are skewed by their visual impairments.
Example: a One-Stop Center requires all customers to take a particular computerized test before referring them for possible job placement. Although the test may be taken in “audio mode” (so that people with visual impairments may hear the questions and respond verbally), one section of the test measures map-reading skills. Customers’ scores are based on their performance in all sections of the test; no section is optional. This test is discriminatory, because customers with certain visual impairments will not be able to respond adequately to the map-reading section, and because map-reading skills are not required for every job.
Example: a One-Stop Center requires customers who want intensive services to take a computerized assessment. The computers used for the assessment are not modified for people with mobility impairments that affect the use of their hands, and some such people may have difficulty inputting accurate answers. Therefore, the results of the assessment will be skewed by these customers’ mobility impairments, and will not accurately reflect the customers’ skills and abilities.
9/18/2018

37. 5.2: Reasonable Accommodations 5.3: Reasonable Modifications
Must be provided for all aspects of a recipient’s programs and activities
registration for, and provision of, aid, benefits, services, and training
core, intensive, training, and support services
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38. What are reasonable accommodations/ modifications?
Actions that must be taken when a particular person with a disability seeks:
to apply for / participate in a program or activity
to apply for / perform the essential functions of a job
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39. What are the differences between them?
Modifications specifically apply to “policies, practices, and procedures” (the way things are done)
Accommodations also apply in employment context (discussed under 5.8)
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40. What are the differences between them? (cont’d)
Terminology
Accommodations must be provided unless would cause undue hardship
Modifications must be provided unless would fundamentally alter the nature of the service, program, or activity
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41. Undue hardship and fundamental alteration
Recipient must:
go through specific, formal process to decide whether hardship / alteration would occur
if so, take other action that would allow the person with a disability to participate to the fullest extent possible
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42. General examples of recommended practices
Implement a written policy explaining:
the circumstances under which accommodations / modifications must be provided
the process for handling a request for a reasonable accommodation / modification
the system for documenting the types of accommodations / modifications that have been provided
examples of accommodations / modifications
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43. Specific examples
Registration and orientation: ask all registrants if they need assistance for the registration / application process
Initial screening and assessment: give customers an opportunity to receive a comprehensive screening for hidden disabilities
Service delivery: provide counseling re: the effect of employment on SSI / SSDI benefits
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44. 5.4: Most Integrated Setting
Recipients must:
Administer programs and activities in the most integrated setting possible
Not provide segregated aid, benefits, services, or training to people with disabilities unless necessary to provide services as effective as those provided to others; and
Let qualified people with disabilities participate in integrated programs or activities, even if lawful “special” programs / activities exist
9/18/2018

45. Segregation – is it lawful?
Can the respondent prove:
that segregation is necessary?
that it provides alternate services that are as effective as services for people without disabilities?
that it gave people with disabilities the option of participating in either the segregated or regular program?
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46. Most integrated setting (some examples)
Recipients should not rely solely on Vocational Rehabilitation agencies to provide services to customers with disabilities
Recipients should make every effort to provide job assistance that leads to employment for customers with disabilities in a competitive, integrated work environment
Recipients should not automatically place customers with disabilities in “sheltered workshops”
9/18/2018

47. 5.5: Effective Communication
Take steps to ensure that communications with people with disabilities are as effective as communications with others
Furnish appropriate auxiliary aids and services where necessary to give a person with a disability an equal opportunity to participate
Give primary consideration to the requests of the person with a disability when determining the appropriateness of a particular auxiliary aid or service
9/18/2018

48. More Communication Requirements
Where a recipient communicates by voice telephone, the recipient must also use TDDs/TTYs or a relay service
Recipients must make sure that people with disabilities can find out:
what accessible services and facilities are available
where they are located
9/18/2018

49. Effective Communication (some examples)
Inform customers of the recipient’s obligation to provide auxiliary aids and services
Provide a list, in accessible formats, of all currently available assistive technology devices and services (such as closed captioned TV monitors or ZoomText)
Provide “Pocket Talkers” or interpreter services, as appropriate, for people with hearing impairments
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50. Effective Communication (more examples)
For people with visual impairments:
Provide materials in Braille or large print, or recorded on audiocassette or ASCII diskette
If recipient has a video library, make videos available with audio descriptions
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51. Effective Communication (more examples)
For persons with cognitive impairments:
Provide assistance and/or extra time for completing forms
Repeat instructions, use a slower voice and simple sentences
Provide a quiet environment for reading if the public area has distractions
9/18/2018

52. Effective Communication (more examples)
For persons with mobility impairments:
Staff put themselves at the wheelchair user’s eye level (if possible, sit next to the customer)
Staff provide a clipboard as a writing surface if counters or reception desks are too high, and come around to the customer side of the desk or counter during interaction
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53. Effective Communication (more examples)
For persons with speech impairments:
Staff does not pretend to understand; rather, staff asks the person to repeat what s/he said and then repeats it back
Staff asks questions that require short answers or a nod of the head
If staff has difficulty understanding, considers having the customer write or use computer (BUT FIRST ASKS CUSTOMER IF THIS IS OK)
If no other solution can be worked out, staff asks whether there is someone who can interpret on customer’s behalf
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54. 5.6: Programmatic Accessibility 5.7: Architectural Accessibility
Programmatic accessibility applies only where architectural accessibility isn’t required!
The Access Board (800) TDD/TTY: (800)
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55. The “hierarchy of obligations”
New construction
Alteration or renovation
Done by you, on your behalf, or for your use?
Before or after you received Federal financial assistance?
“Existing facilities”
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56. 5.8: Employment Practices
Prohibit discrimination on the basis of disability;
Provide reasonable accommodation;
Develop and use a regular schedule for reviewing selection criteria to ensure they do not screen out, or tend to screen out, qualified individuals with disabilities; and
Prohibit pre-employment and pre-selection inquiries regarding disability.
9/18/2018

57. Employment Practices (some examples)
Develop a written policy for providing reasonable accommodations;
Be aware of what constitutes legal and illegal pre-employment and medical inquiries. Unless an exception applies, none of the following should be asked during the application (pre-offer) process:
Health or physical condition;
Medical history;
Previous workers’ compensation claims; or
Prior health insurance claims.
9/18/2018

58. Employment Practices (more examples)
Recipient should not require that applicants for employment take any of the following tests as part of the application process:
Alcohol test;
HIV test; or
Psychological tests that are designed to identify a mental impairment.
9/18/2018

59. Medical Information (special considerations)
Medical information of employees and customers must be kept separate from non-medical information;
Medical information must be securely stored in a separate location from non-medical information; and
Medical information may include insurance application forms, health certificates, results from physical examinations, etc.
9/18/2018

60. Element 6: Data Collection and Maintenance
Some general requirements:
Race/ethnicity, sex, age, and disability status (where known) must be collected and maintained;
Securely stored to ensure confidentiality; and
Maintained for at least three years from close of applicable program year.
Limited use of information:
Record-keeping and reporting;
Determining eligibility; and
Determining whether recipient is operating WIA Title I program in non-discriminatory manner.
9/18/2018

61. Data Collection and Maintenance
Discrimination complaint log must be maintained:
Statement of basis (race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship, participation in a WIA Title I-financially assisted program);
Name and address of complainant;
Description of complaint;
Date complaint filed; and
Disposition and date of disposition.
Maintained for at least three years from the date of resolution of the complaint.
9/18/2018

62. Element 7: Monitoring
Each Governor must establish a monitoring system that contains two aspects:
Periodic monitoring of all aspects of the recipients’ compliance with general WIA program reqts; and
Monitoring compliance with the nondiscrimination and equal opportunity requirements under WIA.
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63. More on monitoring Periodic monitoring must include:
Investigating significant differences across groups;
Analyzing data and records on who is being served; and
Evaluating compliance with administrative obligations.
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64. Monitoring the One-Stops
How will the State/LWIA communicate monitoring obligations to all recipients and One Stop Centers?
How will the State/LWIA ensure that monitoring is occurring?
How will the State monitor and evaluate the success of the LWIA’s monitoring efforts?
9/18/2018

65. Element 8: Complaint processing
Governor or LWIA (as provided in State’s MOA) is responsible for developing and publishing complaint processing procedures to be used by service providers.
State’s or LWIA’s EO Officer has specific responsibility for developing and publishing.
Recipient’s EO Officer must ensure that the discrimination complaint procedures are followed.
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66. More on complaint processing
Procedures must provide the complainant with the option to file with the recipient or directly with the Civil Rights Center.
These rights are clearly delineated in the “Equal Opportunity is the Law” notice which must be posted and given during in-take or orientation to every customer.
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67. More on recipient’s procedures
The procedures must include the following required elements:
Initial written acknowledgement of receipt;
Written statement of issues;
Process for fact-finding;
Alternative dispute resolution (ADR); and
Written notice of final action (including notice of right to file with CRC).
Process must be completed within 90 days
9/18/2018

68. Alternative dispute resolution
Must be included as an option in the recipient’s procedures.
Cannot be required as an initial step before a discrimination complaint is filed.
Must be chosen by the complainant after the discrimination complaint is filed and
the recipient has provided written acknowledgement that complaint received; and
the recipient has provided a written statement of issues that are accepted for attempted resolution.
9/18/2018

69. Element 9: Corrective actions/sanctions
Corrective action is required where there is cause to believe a violation has occurred and a violation has been identified as the result of:
A compliance / monitoring review;
Investigation of a discrimination complaint; or
Both.
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70. Examples of violations and possible corrective actions
Failure to include “tag lines” in communication
Discrimination on the basis of disability
Reissue communication with “tag lines” included
“Make-whole” relief
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71. More on corrective actions
Take immediate corrective action or agree on a plan if immediate corrective action is not possible:
Completely correct each violation;
Establish minimum time frame to completely correct the violation;
Institute follow-up monitoring procedures to ensure commitments to take corrective action and remedial action are being fulfilled; or
Provide written agreement or assurance to document corrective action taken or prospective relief planned.
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72. Sanctions
State and LWIA must have procedures in place to impose sanctions when:
Voluntary correction of a violation fails; or
It is apparent that the recipient refuses to correct the violation within the timeframe established.
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73. Summary Two key components to ensuring success:
Allocate sufficient staff and resources (such as training and equipment) to the EO Officers/Section 504 Coordinators so that they will be able to effectively ensure compliance with WIA Section 188 and Section 504 of the Rehabilitation Act; and
Develop thorough monitoring and self-evaluation tools to gauge compliance.
9/18/2018

74. Where to Get More Information
CRC website (
Contains information such as:
the WIA Section 188 Disability Checklist
instructions on how to keep and submit complaint logs
ODEP website (
9/18/2018

75. How to contact me Postal Mail: Telephone:
Denise Sudell, Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210
Telephone:
(voice)
/16 (TTY/TDD)
9/18/2018